Why Free Speech Loses in India

The news from India these days is rarely cheery. The country’s long-overdue winning streak in the international press, which saw old clichés upgraded to shiny new high-tech models, ended around 2010. Since then, the headlines have been relentlessly grim: corruption, poverty, political dysfunction, violence against women, mistreatment of maids, and the criminalization of homosexuality. On Thursday morning, the big story was a brawl inside the Indian Parliament, during which a lawmaker used a can of pepper spray against his colleagues.

This week the picture dimmed a little further, with the news that “The Hindus: An Alternative History,” an eight-hundred-page book by Wendy Doniger, an eminent professor of religion at the University of Chicago, would be removed from Indian book shops. Penguin Books India, which first published the book, in 2009, signed an out-of-court settlement with an advocacy group, the Shiksha Bachao Andolan Samiti (“Movement to Save Education”), who claim to be defending “the sentiments of Hindus all over the world.” The group had filed a civil suit and multiple criminal complaints against Doniger and her publisher; under the terms of the agreement, which includes a bizarre clause requiring Penguin to affirm “that it respects all religions worldwide,” the publisher will cease to sell “The Hindus” in India, and pulp its remaining inventory.

The original legal notice in the case, sent to Penguin in 2010, alleged that the book “is a shallow, distorted, and non-serious presentation of Hinduism … written with a Christian Missionary Zeal and hidden agenda to denigrate Hindus and show their religion in a poor light … The intent is clearly to ridicule, humiliate, and defame the Hindus and denigrate the Hindu traditions.” Citing a passage in which Doniger refers to Sanskrit texts written “at a time of glorious sexual openness and insight,” the complaint declares that her “approach is of a woman hungry of sex.”

Conservative Hindu groups have been campaigning against Doniger for more than a decade, contending that she misunderstands and deliberately misrepresents Hindu texts and practices, insults Hindu gods in her readings of myth, and crudely focusses, through a psychoanalytic lens and above all else, on sex. To her detractors, what look at first like impressive scholarly credentials—the long list of publications, the endowed chair at Chicago, past presidencies of the American Academy of Religion and the Association for Asian Studies—are, in fact, evidence of a sinister colonialist conspiracy dominating the study of Hinduism in the West.

Rajiv Malhotra, an Indian-American businessman and philanthropist, has been Doniger’s most persistent and vocal antagonist. “India is now newly resurgent in business, geopolitics, and culture,” he has written. “However, a powerful counterforce within the American academy is systematically undermining core icons and ideals of Indic culture and thought.” Many of Malhotra’s arguments are risible, but he has deftly turned the rhetoric of post-colonialist academia back against the academy: his essays read like right-wing parodies of Michel Foucault and Edward Said. (“The Eurocentric superiority complex, so blatant among many aggressive [academics], is a reaction and Freudian cover for their deeply-rooted inferiority complexes and insecurities.”)

These disputes—about the quality of Doniger’s scholarship and the biases of Western scholars of Hinduism—should not be summarily dismissed, but they are irrelevant to the legal case against the book. To debate them is to concede that only meritorious works are deserving of the right to publication. (And who shall determine their merit?) The underlying problem for free speech in India today is not simply religious intolerance but weak institutions that are incapable of upholding liberal values. Doniger’s book is the third in as many months to be effectively censored through private means, by using legal threats. The other two cases are no less appalling for lacking any element of religious or cultural offense.

In January, Bloomsbury India announced that it would voluntarily withdraw copies of “The Descent of Air India,” a book about the failing state-owned airline, written by Jitender Bhargava, who is one of its former executive directors. The cause was a criminal-defamation suit filed by Praful Patel, a minister in the current Congress Party-led government, who is widely blamed for wrecking the national carrier during his earlier tenure as India’s aviation minister. Bloomsbury declined to fight the case, and instead tendered an apology to Patel. Their surrender was lamentable, but, if they concluded that their chances of prevailing against a powerful minister in a trial court were minimal, they were surely not wrong.

The Indian legal system is not only favorable to plaintiffs alleging offense or defamation; it also grants powerful litigants the ability to suppress books before they are even published. In December, the Indian finance conglomerate Sahara—whose founder, Subrata Roy, is barred from leaving the country while courts resolve a series of legal and regulatory challenges against his firm—obtained an order from the Calcutta High Court blocking the publication of a book about the company. Sahara had filed a thirty-million-dollar defamation suit against the book’s author, Tamal Bandyopadhyay, the deputy managing editor of Mint, India’s most respected business newspaper.

None of these cases involve the “banning” of a book by government action. Instead, they represent a kind of private censorship, in which interested parties find it easy to manipulate a rotten system and silence inconvenient opinions. Governments at the state and national level have never hesitated to ban books—and there is little practical distinction between the major political parties in this regard—but these days there is no need for them to do so.

Free speech has innumerable enemies in India, and comparably few principled defenders—against whom vast legal, political, and social obstacles are arrayed. A writer, publisher, or newspaper editor can fight a case in court, provided he has the patience to endure the interminable delays of the legal system. In the end, he may even win, though the relevant laws have been interpreted, over the decades, to carve out larger and larger exceptions to the right of free expression enshrined in India’s Constitution. No political leader will dare speak in defense of a text under attack unless the book in question targets his enemies; supporting the freedom of unpopular speech only costs votes and never wins them. And the state does not offer much protection from physical harm. When death threats are phoned to your home, or a mob comes to vandalize your office, you’re on your own.

Assigning blame for this deplorable state of affairs, as with so much else in India, is an exhausting exercise in circularity. In Doniger’s case, it would seem reasonable to start with the man who filed the suit, Dinanath Batra, who has waged a series of legal battles to cleanse Indian textbooks of what he deems “objectionable passages.” But Batra, who is associated with the family of Hindu nationalist organizations connected to the Rashtriya Swayamsevak Sangh (R.S.S.), has many defenders, who maintain that he has simply sought recourse to which he is entitled by Indian law. (This defense has frequently been accompanied by the disingenuous claim that free speech is not at issue in this case, because the settlement was a voluntary one.)

So perhaps the law is to blame? This was the crux of Doniger’s own statement, released on Tuesday: the “true villain,” she wrote, was the section of the Indian Penal Code that criminalizes, in its words, “deliberate and malicious acts intended to outrage religious feelings of any class.” The Indian Constitution lists “freedom of speech and expression” among the fundamental rights it guarantees, but the text also specifies a series of exceptions—later expanded by India’s much maligned First Amendment—that allow the government to impose “reasonable restrictions” on this freedom. Compared to those of the United States, these terms are indeed restrictive, but constitutional scholars point out that, in adopting them, India was largely taking its cue from the exceptions to absolute free speech contained in many other modern constitutions. What differed in the Indian case was the subsequent judicial interpretation, which steadily widened the state’s power to limit free expression. On this view, the fault lies with the courts.

In the present instance, however, the trial court had not yet delivered its decision in the case. Penguin, which initially declined any comment on the settlement, may have concluded that it was unlikely to prevail in court. But it is hard to see its decision as anything but a puzzling capitulation. Had the verdict in the trial court gone against Penguin, the company could have appealed the ruling to two higher courts. And so, as many have observed in the past two days, the publishers must bear considerable blame. If they do not defend their own books, then who else will do it?

In the Indian media, a flawed consensus has settled on Penguin India as the sole culprit in this case, as if its decision, however cowardly, was not set in motion by a dubious lawsuit that a judge should have swiftly dismissed. When I spoke to Doniger, on Thursday morning, she reiterated the defense of Penguin India that she had made in her original statement. “They fought the case in court for four years,” she said. “They wanted to keep the book in print as long as possible.” Doniger, like her publishers, would not divulge the logic behind the decision to drop the case. But, she added, “it is unfair to blame Penguin India, because this was beyond their control.”

On Friday, Penguin India finally released a statement, which suggested that the relevant Indian law “will make it increasingly difficult for any Indian publisher to uphold international standards of free expression.” This may be true, but it is a claim that should have been tested by seeing the case through to its conclusion.

In the absence of further clarification from Penguin, we are left with the dispiriting sight of the world’s largest trade publisher—the recently merged Penguin Random House—surrendering to a spurious legal threat from a minor advocacy group. Seen from this perspective, it seems certain that the decision to withdraw the book was not made in Delhi. It is all too easy to imagine that Bertelsmann and Pearson, the European conglomerates that share ownership of the company, concluded that a long legal struggle to defend free speech in India was not worth even a minor cost to the bottom line. It is a decision that they may come to regret. The outrage at Penguin, particularly among writers, continues to grow. The Booker Prize-winning novelist and essayist Arundhati Roy, who is published by Penguin, wrote an open letter to the company that appeared in the Times of India, among other venues, on Thursday. “Even though there was no fatwa, no ban, not even a court order, you have not only caved in, you have humiliated yourself abjectly before a fly-by-night outfit,” Roy wrote. “You must tell us what happened. What was it that terrified you? You owe us, your writers an explanation at the very least.”

Many commentators have noted, ruefully, that Penguin was the original publisher of “The Satanic Verses,” and that it refused to back down even after Ayatollah Ruhollah Khomeini’s fatwa calling for Salman Rushdie’s murder, which was issued exactly twenty-five years ago this week. What is noted less frequently, at least outside of India, is that the first country to outlaw the book was not Iran but Rushdie’s native land. India prohibited the book’s import and sale in October of 1988, only nine days after its publication in England. Muslim political leaders approached the Indian government—led by the third-generation Indian National Congress dynast Rajiv Gandhi—and urged a preëmptive ban.

Khomeini is long dead, but India’s ban on “The Satanic Verses” has never been lifted; the precedent it set remains very much in place. In 2012, Rushdie’s scheduled appearance at the Jaipur Literature Festival was scuttled by threats of violence from local Muslim leaders, after police in the state of Rajasthan, then under a Congress government, essentially signalled that they would refuse to protect the festival if Rushdie showed up. It was a depressing but instructive episode: the religious passions ranged against Rushdie were all too real, but the deciding issue was the transparent cynicism of the political response. Elections in Uttar Pradesh, India’s most populous state, were about to begin, and the Congress Party, which had once commanded the overwhelming support of the state’s sizable minority of Muslim voters, hoped to woo them back by keeping Rushdie away from Jaipur.

The Congress Party is almost certain to be defeated in this year’s general elections, but there may be reason to believe, as some reports on the Doniger case have suggested, that the likely victory of the Hindu nationalist Bharatiya Janata Party will further chill free speech in India. Narendra Modi, the autocratic chief minister of the western state of Gujarat and the B.J.P.’s prime-ministerial candidate, is no friend to free expression: in 2011, Gujarat banned “Great Soul,” a biographical study of Gandhi by the former New York Times executive editor Joseph Lelyveld, allegedly on the basis of misleading newspaper reports suggesting that it depicted the Mahatma as a homosexual. Modi urged the central government to ban the book nationwide, and demanded an apology from Lelyveld.

Modi’s most fervent admirers have cheered the victory against Doniger. Subramanian Swamy, an outspoken B.J.P. leader who resembles a Hindu-nationalist hybrid of Larry Klayman and Glenn Beck—a legal gadfly who files endless cases against the government of India and circulates outlandish conspiracy theories—gloated on Twitter, “Wendy Doniger buckles before the coming Saffron wave.” Batra, who filed the case against “The Hindus,” announced that his next target would be Doniger’s most recent book, “On Hinduism,” a massive collection of essays published, in 2013, by Aleph, a smaller Indian firm. “The good times are coming,” Batra told a reporter for Mint, ominously. “Believe me.”

Indian liberals, who are already greeting the prospect of Modi’s victory with declarations of panic, believe his influence has already silenced dissenting voices in the media. The withdrawal of Doniger’s book, according to this view, is another unhappy omen of what the ascendant Hindu right has in store. But the evidence for these claims is circumstantial: the history of the Indian media is the history of attempts at its manipulation, a dirty game always played best by whichever party holds office. The suppression of free speech and the suborning of journalists are trusted means to demonstrate and wield political power in India, and there is little reason to hope that might soon change.

Photograph by Anindito Mukherjee/EPA.

Sign up for the daily newsletter.Sign up for the daily newsletter: the best of The New Yorker every day.